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Wednesday, November 14, 2012

The Rings That Divide Us

I mused a couple years back about how states can check Federal power...and how they can't:

South Carolina--you know, the State that first seceded and later started the Unpleasantness--was embroiled in the nullification crisis during the Jackson administration, but later along with other Slave States turned to the General Government to protect their peculiar institution.  In contrast, Vermont went down the nullification path in the last few years before war broke out by passing laws in contravention of The Fugitive Slave Act of 1850, guaranteeing due process to escaped slaves and securing freedom to all persons in our State (pissing off folks in KentuckyVirginia and Georgia, amongst others).

Obviously there are limits to State power in our system.  Nullification has essentially been, uh...nullified by Prigg v. Pennsylvania and Ableman v. Booth.  The idea that the Union cannot be unilaterally dissolved was effectively settled by The War Between The States and Texas v. White(though Chief Justice Chase did allow in his opinion for revolution and consent by the other States).  So is there any recourse for the States to do what's right in the face of perfidious Federal policy?

While secession is a non starter...from where I sit it's still a useful extreme boundary for us to discuss.  Trying that route again would be tantamount to revolution and I don't think that's necessary at this juncture, online calls for torches and pitchforks notwithstanding.

Similarly, States might not be able to nullify Federal laws per se, but certainly they can challenge them in a variety of milieu, including passing their own laws that establish alternative institutions.  As I mentioned before, we have marriage equality in Vermont (and a handful of our moral peers) and even though it isn't recognized at the Federal level or in most of the other States, it provides a beacon for future initiatives that can eventually create critical mass for universal equality.

This is probably why I'm enjoying all the new secesh talk right now.  It's an interesting--and I still think worthwhile--intellectual exercise to consider what that might look like.  And the hamfisted, simplistic slacktivist secesh petitions just make me giggle.

I would also add Cooper v Aaron (1958), regarding desegregation in Arkansas, to the cases cited above:

Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers'

"anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. . . ."

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that:

"If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery. . . ."

A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court,

"it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases. . . ."

So, you know, legislators in WI might not like SCOTUS' decision on Obamacare, but they damn well better get over it.  Elections have consequences, as do court rulings.


November 14, 2012 in Constitution, Schmonstitution | Permalink


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Not so clear that they can't do passive-agressive obstruction:

"One state official will be appointed to be in charge of ALL state interactions with Obamacare...and the Governor neglects to appoint one. Then appoints a dead guy. etc,etc."

Posted by: Snarki, child of Loki | Nov 15, 2012 11:43:24 AM

True dat, but at least there are some default they can't be passive about, like if they choose not to set up an exchange, the Feds do it, and pre-existing conditions, etc. The only thing they can do is refuse to expand Medicaid and reject the monies, which I think will eventually be noticed and felt even by constituents who don't benefit.

Posted by: NTodd Pritsky | Nov 15, 2012 9:28:52 PM

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